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POWER AND POLICY OF EXCLUSION. 



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A KElSTTTTOKIAlSr, 

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A EXCHANGE 




POWER AND POLICY ()F EXCLUSION. 



BY A KENTUCKIAN. 



THE TRUE ISSUE. 

There is no such pending issue as that of reconstructing the 
Union, for it has never been broken. There was only a tempo- 
rary suspension of Federal authority over the eleven States that 
attempted secession. That suspension no longer exists ; the Fed- 
eral authority is fully restored. 

There is no question as to the reannexing those States, because 
they have never been out of the Union. That question was the 
issue upon which the four years civil war was waged. The result 
of the war, as both sides agree, has finally settled that issue.. 
The Constitution neither contemplates nor tolerates the secession 
or expulsion of a State. The only wny in which those States 
could have been gotten out of the Union was by the success of 
their rebellion and the legal acknowledgment of their independ- 
ence. The treaty making power of President and Senate, nor 
any power possessed by Congress, was competent to that. It 
could not have been legitimately accomplished otherwise than by 
an amendment of the Constitution. 

Yet the fact of their having been out of the Union is assumed 
as the basis of an argument to prove power in Congress to treat 
them as conquered foreign territory. In aid of this assumption 
it is contended in debate, that they are estopped by their ordi- 
nances of secession, from denying that they were out of the- 
Union, and as foreign States waging war against us, the speaker 
forgetting that every valid estoppel must be mutual. If they are 
so estopped so were we, and instead of conducting the war, a» 
was done, exclusively under the power to suppress rebellion, it 
could have been legally commenced and carried on only under a 



2 

formal declaration of war by Congress. So far from admitting 
or submitting to any such estoppel, Congress repeatedly, during 
the Avar, assumed thom to be and legislated for them as States 
still within the Union, and, in 18G2, by the apportionment bill, 
gave each of those States their proper proportion of Representa- 
tives in Congress. 

But if it were conceded that such estoppel could be rightfully 
applied to tlio&e States, yet the nation nor any of the loyal States 
can be so estopped, nor even individual citizens of those States. 
Take, for example, the case of President Johnson making con- 
itinual protest against secession, driven from his home and seek- 
ing an asylum within the Union lines, against what he denounced 
as illegal oppression, and clamoring for the aid of the Federal 
Government in suppressing the usurpers and restoring him to 
his home. Is he estopped by the ordinance of Tennessee from 
denving that she was out of the Union? Yet his case is only 
that of haiidveds of thousands who it is attempted to estop in 

this way. 

There is, however, a valid estoppel having direct bearing on 
the subject. It is the estoppel under which the Federal Govern- 
ment lies, against denying either that those States are still within 
the Union, or that they have subsisting valid State Governments. 
This estoppel grows out of the receiving the ratification of the 
Constitution amendment by the Legislatures of those States and 
countin'^ them ;is valid ratifications. Such ratification is the 
hin-hcst function a State Legislature can be called on to perform, 
far transcending the appointment of Senators and Ftepresenta- 
tives, or any ordinapy legislation operating only within the limits 
of the State. If a legislature is competent for that, it must be 
competent nl,-o for every other function required of it by the 
Constitution for carrying on the Federal Government. The 
makin'-' and acceptance of such ratification presents the case of a 
valid mutual estoppel upon both governments from questioning 
the legitimacy of tiiose legislatures as representing States within 
the Union. The amendment could not obtain a valid legal ratifi- 
cation without counting the ratifications of thre^ or more of the 
rebel States. \ 



The only proper pending issue is how speedily to restore na- 
tional concord, Avith a revival of that trade which formerly 
enabled the South, by its surplus agricultural products, to con- 
tribute two hundred millions annually to our enormous national 
commerce, and aftord such a bountiful market for the reward of 
Northern commercial and manufacturing industry, and which will 
aiijain enable the South to bear its full third of the national debt. 
This is the issue for whose successful solution the nation is 
watching and waiting with intense desire. It will be far from 
content with the mere restoration to Federal rule of a paralyzed, 
impoverished, hostile South. It wants the restoration of a pjros- 
perous, friendly South, Avith all the amity that just and proper 
conciliation can produce. lie grossly mistakes national senti- 
ment Avho adopts any other guide than this. He equally errs 
who supposes that the nation will voluntarily assume any un- 
necessary addition to its already enormous burthen of taxation 
in the reckless pursuit of a most unappeasable vengeance. It is 
a practical, business loving, industrious, christian nation, not 
likely to place a high money value on the mere pleasure of un- 
necessary and impolitic vengeance against our own countrymen. 
It thinks that the enormous loss of life and property with which 
the South has been afflicted hy its mad, iniquitous effort at dis- 
union, is ample to satisfy the fullest retributive justice, when 
weighed in any christian scales. More than that, inflicted, 
because of mere hate, would redown to neither the national honor 
or prosperity. Thousands of Northern men are waiting for a 
restored amity to move to the South with their mechanical and 
business skill and their capital, to participate in that rich harvest 
whicli every one anticipates as the immediate result of the restora- 
tion of the airricultural industrv and trade of the South. AVith- 
out that amity they will not risk their capital or their families 
there, and the nation Avill lose the benefit of the infusion of such 
population into the South toward soothing all sectional preju- 
dices and animosity. 

The speedy restoration of the desired amity indispensably re- 
quires, that the South should be promptly invited to a participa- 
tion in the legislation of Congress. The preponderance of 



Xortbern strength in both Houses is so great as to give no room 
for apprehension that such participation could lead to any undue 
influence even over proper legislation. No such simulated pre- 
tense can be the real basis of rational action. The refusal of 
such participation would excite the fear of a settled purpose to 
tyrannize over the South and materially retard the restoration of 
the desired amity. 

Yet, in despite this obviously sound policy, certain leaders of 
the dominant party are attempting to exclude, instead of wel- 
coming, Southern members to Congress. This induce.^ the neces- 
sity for an inquiry into the power to enforce such exclusion and 
the policy of its exercise. 

"the power To EXCLUDE. 

This is claimed in various ways — some giving it to Congress as 
part of its proper jurisdiction over conquered foreign territory; 
others give it to the two Houses separately, under the authority 
of each of them acting separately, to judge the qualification of 
their members. Little need be here said about this latter deriva- 
tion of the power, as its perfect fallacy and the grave blunder 
committed by President Johnson in giving it his seeming counte- 
nance, have been adequately expose^ by a distinguished member 
of the House, who is also the principal leader in behalf of the 
exclusion project. 

According to settled construction, the Constitution having pre- 
scribed the qualification of members, it is not competent for 
either House, acting separately or for boih conjointly, to super- 
add any other qualification or disqualification. What was done 
ia requiring the purgation oath, is not to be relied on as a prece- 
dent to the contrary. It rather needs justification than furnish- 
inr' authority for any similar action. Its only justification, or 
even excusability, is that it was a wnr ineiisure, rendered neces- 
sary by the then perilous condition of national affairs. It is a 
charitable presumption in favor of the intelligence and integrity 
of those who passed that act that they would not now vote for 
another of the same character. 

The main argument in support of such power in Congress 
seems to rest upon the assumption of a rightful power in Con- 



gress to treat the people of the Southern States as though they 
were the citizens of conquered foreign States. There being no 
pretense for such power under the Constitution, they attempt to 
get at it de hors the Constitution, as a belligerent right derived 
from the law of nations, which they insist enables Congress to 
refuse to the Southern people self government, or any govern- 
ment, except such as Congress shall first permit or prescribe. 

This thing called the law of nations has been put upon very 
severe duty. During the war it was made the scape-goat of many 
things that savored strongly of usurpation and tyrannical abuse of 
power — things that were repugnant to all American ideas of civil 
liberty. It seems that we are not yet done with this mode of 
deriving extraordinary powers to the government, wholly un- 
known to the Constitution, even though we have reached a time 
of profound peace — when the laws of war cease to apply, and 
when the law of nations expressly disclaims all right of interven- 
tion lor itself in the affairs of the nation. But to obviate this 
difficulty some have had the inconceivable folly to contend that 
the law of nations is adopted into and makes an integral part of 
the Constitution. This, too, merely because the Constitution 
recognizes the fact of there being such a law, while giving power 
to punish its violation. Such an astounding absurdity seldom, if 
ever before, fell from the pen or lips of a lawyer. 

There is, however, no need here for further exposing this folly; 
for if the law of nations were allowed to govern the case, the ad- 
vocates of exclusion could derive no help therefrom, even if they 
were allowed the additional concession that the rebel States were 
to be treated as conquered foreign States. For by tl at law the 
people of a conquered foreign province are entitled to live under 
their local law and civil officers, except so far as the contrary 
may be necessary to the military supremacy of the conqueror. 
(See the authorities cited in the appendix.) 

Vattel says that rigorous measures against conquered foreign 
enemies must cease from the moment that danger from them is 
over — -'from the moment the conquered peoi'le are become citi- 
zens." What is the present status of the people of the rebel 
States? Are they not citizens, owing and owning allegiance to 



the Union, and punishable for treason? As to nineteen twen- 
tieths of them, if not in even larger proportion, the President's 
proclamation has absolved them from all taint of the crime of re- 
bellion. In the language of the law books it has purified them, 
and, politically speaking, made them "new men." It has restored 
them to all their rights as citizens by a much higher claim than 
the law of nations, — by the guarantee of our own Constitution. 
Among the most important and sacred of those rights is the 
protection of the Constitution, in their own self-government and 
in the institution of Legislatures when and how they please, like 
their free fellow-citizen in any other part of the Union. As said 
by the talented Judge Sprague, in delivering one of his decisions 
in Admiralty, ^'•Belligerent rights cannot be exercised ivhere there 
are no belligerents." "'^ * "No nation ever makes conquest of 
its own territory. If a hostile power, either from without or 
from within, takes and holds possession and dominion over any 
portion of its territory, and the nation by force of arms expels 
or overthrows the enemy and suppresses hostilities, it acquires 
no new title, but merely regains the possession of which it had 
been temporarily deprived. The nation acquires no nevv sov- 
ereignty, but merely maintains its previous rights." '■• ''■ * 
"Under our government the right of sovereignty over any por- 
tion of a State is given and limited by the Constitution, and will 
be the same after the war as it was before." 

These opinions of Vattel and Judge Sprague sufficiently expose 
the fallacy of the attempt to derive the claimed power to Con- 
gress from the law of nations; which, instead of sanctioning, 
would, if it had any operation on the subject, expressly forbid the 
exercise of such powers. 

The power to exclude is also claimed under the clause of the 
Constitution which says: "The United States shall guarantee to 
every State in the Union a republican form of government." 

"Nothing is more irrational than to suppose a power in Con- 
gress either to expel the rebel States or permanently to exercise 
despotic rule over them, while the Constitution prohibits even the 
nation from depriving either of them of its 'equal suffrage in the 
Senate,' by any amendment of the Constitution. 



*' If there is any thing equnlly irrational, it is the absurd at- 
tempt to deduce, from the cUtuse guaranteeing to every State a 
republican form of government, a power in Congress to impose 
upon a State a government that is not republican. This would be 
violating the guarantee under pretext of its fulfilment — for what- 
ever difference of opinion there may be as to what was precisely 
meant by ' republican government,' there can be none that self- 
government by the people of a State was indisputably part at 
least of what was meant. A form of government dictated or im- 
posed by Congress was certainly not intended, as it certainly 
would not be republican or self government. 

"After the rebellion is subdued, the nation will not tolerate any 
protracted arbitrary government of the rebel States, even if Con- 
gress has the right so to govern during the rebellion. It would 
be the accumulation of vastly too mu^.h power in the Federal Gov- 
ernment, leading to rapid consolidation and the overthrow of the 
most necessary safeguard of the nation's liberty." 

Such, also, appears to be the opinion of President Johnson. 
He evidently makes the manful concession that he himself is not 
to be trusted with the execution of such power. 

This attempt to institute tyranny over the Southern States 
under the pretext of guaranteeing to them republican govern- 
ment, is a new exemplification of " the very fiend's arch mock," 
in perpetrating wrong under pretf-nse of doing a kindness. It is 
like a highway-man siezing a traveler's purse under pretext of 
preserving it f t him from robbery. It is striking proof of the 
desperate devices a party will use in excuse for grcSping at a 
much coveted power. It would be treating the party leaders with 
great disrespect to suppose that the claim to such power affords a 
proper measure of their intelligence. 

Whether so intended or not, the exclusion would operate as a 
punishment of the Southern people for their rebellion in despite 
the pardon of the President. Such w^ould be the plain effect 
whether the exclusion shall be the act of Congress or the separate 
action of each House. The law has never prescribed disfranchise- 
ment or denaiuralization as among the penalties for treason or 
rebellion. To create and enforce now such penalty, either directly 



8 

or by any indirection, would be a plciin violation of the letter and 
spirit of the prohibition against bills of attainder and ex post facto 
laws. That usurpation must be specially blameworthy which is 
made for the purpose of violating the sacred principle, so inesti- 
mable to a liberty-loving people, which is secured by the pro- 
hibition. 

STATUS OF FREED NEGROES. 

If the object of exclusion is by that mode of indirect coercion 
to compel the Southern States to grant the right of suffrage to 
free negroes, it would be well to consider calmly whether the ob- 
ject is attainable in that way. The probability is that they would 
submit to exclusion from Congress for tenor twenty years rather 
than yield that right. This they would do, not because such suf- 
frage would tend to take political power from those who have 
heretofore wielded it, but because in their opinion the cherished 
right of 8uffi-age would be thereby degraded and the whites be re- 
duced too near the level of the negroes ; a leveling downwards 
which they would dislike. Besides, if we could imagine the pro- 
posed coercion to be successful, and the negro suffrage obtain- 
ed, the auticipnted results therefrom would prove altogether 
illusory, if bridling or controlling the political power of Southern 
property-holders is the thing desired. It is the common experi- 
ence of all countries ruled by the ballot, that even among the 
more intelligent and respectable voters who live by the wages of 
manual labor, there is undue influence as to their votes exerted by 
those who pay the wages. Now, those who will be the pi-incipal 
payers of wages to the freed negroes, are exactly those who have 
'heretofore wielded ihe political power of the Southern States, and 
-who would wield it much more securely against the poorer whites, 
by reason of their monopoli'.ed influence over free negro voters. 
The right of suffrage in the different States being that with which 
the Federal Government has no rigltt to intermeddle, the nation 
will be better pleased if the Government confines its action to the 
exercise of granted power, to promote speedy conciliation and 
restoration of trade, rather than usurp power for the purpose of 
an untried exj^erinient of most douhti'iil policy even if it could 
succeed, and whose only certain result would be to retard concili- 



ation. Nothing but ignorance of negro character could induce 
the belief that thy right of suffrage could be used by the negroes 
for any purpose of substantial benefit. The great bulk of them, 
those who Averc raised on Southern plantations, and worked in 
gangs in the culture of sugar, cotton, rice and tobacco, are far too 
ignorant to justify such a belief. No one who remembers the ex- 
treme jealousy manifested ly Americans against foreigners of 
even our own race partaking the right of suffrage, and has wit- 
nessed an excited election at the South, can believe that the negro 
will be permitted to enjoy the right of suffrage though given to 
him by law. 

Another pretext for the exclusion of Southern Senators and 
Representatives, is that a State which denies suffrage to free 
legroes bus not a Republican Government, and tlie Constitution 
having guaranteed to each State " a Republican form of Govern- 
ment," each House has for that cause the right to insist on such 
exclusions. The hollowness of this pretext is at once perceived 
when we remember, that if the perfect political equality of 
free negroes with the wliites be a proper criterion of republican 
government, then none or at most only one of our States has or 
ever had such government. With equal propriety the Houses 
could for that cause exclude the Senators and Representatives 
from any of the loyal States. Such action confined to the South- 
)rn States would engender among their people a strong suspicion 
)f both the desire and the intention to treat them tyrannically. From 
■very thing having tliat tendency we should carefully abstain. 
^Ve should be verj' careful not to sow the seeds of another rebel- 
ion. Profiting by the bitter experience of England and Austria, 
•esulting from the mis-government of Ireland and Hungary, we 
hould be cautious against similar error. The preservation of our 
ystem of government in its beneficent purity and the prevention 
)f undue Federal consolidation, require that the Southern States 
■should not be subjected to any mode of vice-royal rule. We shall 
violate the Constitutional guarantee in favor of their having re- 
publican government, if we do not allow them self-government, 
which is the fundamental principle of all true republicanism. 

It' the object of the exclusion experiment is to obtain for 



10 

freed negroes a change from their mere denizenship to full citizen- 
ship, then the effort is to coerce the eleven States into doing what 
it is very doubtful whether they have the power to do. Accord- 
ing to the express decision of the Supreme Court and the con- 
curring legislative and judicial action of nearly every State, a 
negro never was and never can become a full citizen by reason of 
any mere State action. Indeed, it is doubtful whether he ever 
can be made such, except by an amendment of the Constitution. 
If the Northern States who prohibited free negroes from settling 
in them, have the power to make such prohibition, it is difficult to 
understand how a State can convert them into citizens, and it 
must be conceded that Congress cnnnot do it, as its power is con- 
fined to the naturalizing of aliens or persons born in a foreign 
country. 

There is no well founded cause for fear that the free negroes 
will not be treated with as humane justice at the South as they 
would find in the North, or that Southo-n Courts will not protect 
their right to freedom. They have uniformly been so treated 
heretofore, both by courts and people. The prejudice against 
them has never been so strong among Southern people as it has 
been at the North, and they have seldom or ever suffered in the 
South from those mob outrages which have frequently occurred 
in Northern cities. We have the strongest guarantee that the 
Southern people will continue their humane treatment, from the 
obvious fact that they will be prompted thereto by self-inter- 
est, that most reliable of human motives. The most difficult 
phasis of the subject, is the probability that the negroes will not 
voluntarily work for fair wages, or that the supply of some de- 
sci'iptions of labor will be greatly in excess above the demand. In 
ihe absence of competition in the demand, a main stimulus to 
good treatment would bo wanting. That possible excess in the 
supply affords the only reason for apprehending mal-trealment. 
If the people of the North are sincerely apprehensive of that mal- 
treatment, nothing they can possibly do would tend so much to 
prevent or alleviate such treatment as a coidial invitation and act- 
ive encouragement for freed negroes to settle among them. The 
people of the South will in all ways most cheerfully promote such 



11 

emigration. Such policy of dispersion would be most eminently 
liumane towards the negroes, as the excess of their number at the 
South is the principal hindrance to their proper humane treatment 
there, and would greatly tend to prevent that extinction which, 
some of our wisest statesmen have long ago predicted as the 
ultimate result of their remaining among us. 

Considering the heavy responsibility the Government has in- 
curred towards that unhappy race, by its experiment of sudden, 
forced, unprepared emancipation, humanity will induce it to care- 
fully abstain from every thing calculated unnecessarily to exas- 
perate the Southern whites upon the negro question, or to widen 
the division between the two races, or to force them into collision 
of mutual exasperation, or to justify the fear that the second 
clause of the pending Constitution amendment will be claimed as 
authority for tyrannizing over the whites under the pretext of pre- 
venting them from tyrannizing over the blacks. If the Federal 
Government had the clear power to so far interfere with the local 
concerns of the different States, there would be gross absurdity in 
making it the pauper overseer of four millions of free negroes so 
■widely scattered over fifteen States. It would be next to impos- 
sible to fulfil that office beneficially or efficiently without such an 
enormous expense and concentration of power as the nation 
would not long tolerate. It will be in vain to overrule the Presi- 
dent's veto of such a measure, for its success would intlispensably 
require his willing and zealous co-operation in carrying it out. 
This, we are apprised beforehand, it will not obtain. Instead of 
stimulating or encouraging bad feeling between the whites and 
blacks, Congress would pursue a much wiser policy to use sooth- 
ing emolients instead of chafing the raw sore, to encourage negro 
emigration from the South, and to furnish transportation for the 
negroes to such points in the North where they will receive a 
kind welcome and meet with employment. 

As 10 tiie various schemes of Constitution amendment, they 
had as well be dropped, unless each has appended to it a 
repeal of the second clause of the recently adopted amendment; 
without that, no one of the fifteen slave States will ratify any 
amendment that can be proposed, unless it be one that shall ex- 



12 

plain that ambic;iions second clause by a just and politic construc- 
tion which shall prevent tyranny or the accumulation of too mucl 
power and patronage in the Federal Government. It is currentl} 
reported and believed, that many of the planters in the South 
have already found out a facile though expensive mode for re- 
lieving themselves from tlie worst part of the Freedmen's Bureau 
surveilance — that is by bribing the officers of the bureau. Those 
of us who had adequate experience of the operation of the Pro- 
vost Marshal system, have no difficulty in believing that such 
briber}?^ is novv extensively carried on in the South, and that it 
will be the necessary accompaniment of any prolongation or ex 
tension of the system, which no Presidential vigilance can prevent. 
Whatever else may result from the system, we all believe that 
its most distinguishing feature, the one to which the public atten- 
tion will 1)6 most directed, will be the extensive, enormous bribery 
which it will inaugurate. V/ill the people countenance such a 
Bystem when it lias to be carried on at an enormous national ex- 
pense with the aid of an otherwise unnecessary large standing 
army ? 

There is no ambiguity about the main clause of the amendment. 
It is taken verbatim from the Congressional ordinance in relation 
to the Northwestern territory, and from trie various State Con- 
stitutions that have since that ordinance abolished slavery. There 
is no legal phraseology that has ever been more extensively acted 
on, or is better understood by the whole nation. Theunifoim, un- 
varying interpretation has every where been that it absolves the 
negro from personal servitute and makes him the free denizen of 
the State where he may happen to be. This was the whole effect 
ever allowed to tluit language under the ordinance, or under a 
State Constitution. It was never supposed to have made him a 
full citizen or gave him any claim to be made such, or that it did 
not fully and com[)letely accomplish its own purpose without any 
aiil from legislation. It was never supposed that a mere prohibi- 
tion of slavery could give the negro any sort of right to demand, 
or imposed upon the legislature any sort of duty to extend his 
privileges beyond what was the mere naked result of the prohibi- 
tion. Here, then, in an eighty years practical construction, we 



h've the most autlioritative exposition that written law can have of 
the true import of the first or main clause of the amendment. It 
means nowjast whit ithas al\vaysmennt,nothinj;r more,nothingless; 
that is, it merely converts a slave into a free denizen, and carry- 
ing with it its own nil-sufficient enforcement without any need 
from extraneous aid. 

When the second was found appended to the main clause, the 
intelligence of the nation was startled into the inquiry as to whnt 
it could possibly mean; this thing of a prohibition to be carried 
into cilect by the aid of needless legislation, i.ooking to the 
principal paternity of the measure the censorious denounced it an 
Abolition Yankee trick, to obtain by purposed ambiguity a grant 
of po'.ver which there was not the courage to ask in an open, 
manly, unambiguous manner. If that be so, then, said Conserva- 
tive lawyers, "it will result for once that the Yankee has tricked 
himself by his own cunning," the prohibition needing no aid to its 
own all perfect sufficiency; he has secured only a barren grant of 
pov;er. The only possible rational construction that can be given 
the second clause as a grant of power, is that it enables Congress 
by proper jienalties to prevent any one from using a freed negro 
as a slave; and this was wholly unnecessary, as the penal laws of 
every State, the slave States not excepted, contain an ample pro- 
vision of such penalties. The only conceivable need for Con- 
gressional interposition is the unfounded fear that some of the 
States might repeal those penalties. But even if they did, there 
would remain ample redress for the negro in his right to damages 
in a civil action which the Southern Courts have decided the 
legislature cannot take away. To suppose that any Southern 
State would repeal those penalties would be a gratuitous insult ot 
which Congress ought not to be guilty. The most that Congress 
can properly do, is to provide penalties to be enforced only In 
such State as may repeal those of her own enacting. That is all 
that is necessary to secure obedience to the prohibition, and of 
course is all the necessary and proper legislation tiuit Congress 
can use towards carrying it into eflect. The clause gives no sem- 
blance of power to confer on the freed denizen the right of voting, 
or of testifying, or of being made the pauper ward or apprentice 



14 

of the Federal Government. According to tlie ruling of tlie Su- 
preme Court, the auxiliary power used for carrying into effect a 
granted power must not only be necessary, but, also, it must not 
be incompatible with the 8[iirit of tlie Constitution. The whole 
scope of the Constitution evidently intended to leave to the States 
all such local interests as are involved in tlie rii^ht of votino- or 
testifying, also, tlie guardiaiisliip or apprenticing of minors and 
all police regulations. Conse([uentIy, it can not be proper aux- 
iliary legislation for Coiigi-ess to assume jurisdiction over any 
such sulijects. 

There can be no purpose whose accomplishment would justify 
the policy of persecuting fifteen States, with a population of 
twelve millions into despising and hating the government, even if 
it should not result in rebellion. The affection of its citizens is 
80 needful and precious, that the government can not afford to 
barter it, much less voluntarily to cast it away. No one can be 
so idle as to suppose thit Kentucky, Tennessee, and Missouri will 
tamely 6ul)uiit to being persecuted into vassalage to the Fed- 
eral Government by usurped or even doubtful power. The gov- 
ernment should take heed against persecuting them into re- 
liellion. ft WDuld be singularly re.'-kless to provoke a new rebel- 
lion, when we have only barely got rid of the old one. Those 
three States, with those other three, Ohio, Illinois, and Indiana, 
hold the cotitroi of the great vuiley of the Ohio, which gives them 
the control of the still greater valley of the Mississippi, contain- 
ing with its inseparable appendages, Michigan and Texas, fifteen 
million of population, ivliich in twenty years will be thirty mil- 
lion. "In less than ten years the absolute sway of the great val- 
ley, as mistress of American power, will be uncontrollable and in- 
destructii)]e.''' Since the final destruction of the slave line, the 
folly will iiev'T again be repeated of attempting dismemberment 
upon any line crossing the valley. Its territorial unity is as in- 
destructible as the unity of the commercial interests of its people. 
The six States of the Ohio valley, to whom belongs the guidanceof 
the greater valley, from their size and central position, are bound 
together by ties of mutual interest, affinity and friendship, such 
as bind together no other six States, except, perhaps, those of New 



15 

England. The census of 1860 shows an interchange of living 
emigrants among the slave and free of those six States, without 
counting the descendants of the emigrants then dead, which will 
adequately explain the pociirial hurnogenity of manners, habits 
and o[>inions prevailing among the whole six, and showing them 
bound to each other by kinship as well as neighborship. The 
sympathy and friendship resulting from all this, may well be re- 
lied upon by any one of the six in a just quarrel with the Federal 
Government, so that it behooves the government to take care how 
it drives either of the six into rebellion. 

Some one has so far made a tool of the commanding General, as 
to induce him to make a tentative exjieriment upon tlie patience 
of Kentucky, in anticipation of the expected action of Congress. 
He has had the astounding wisdom and modesty to notify the 
State that he intends to create Bureau Courts for the trial of all 
controversies between her white and black population. This no- 
tification is so recent, that, as yet, it has only served to bring 
much ridicule upon its author. Should he be permitted to carry 
out his threat to the actual punishment by his Courts of respect- 
able and popular citizens, it needs no prophet to foretell the re- 
sult. The tame endurance of military oppression during the pend- 
ency of a perilous civil war, is not a proof of what Kentucky will 
submit to during profound peace. But absurd as it is, this dis- 
covery of such a power in his commission as (leneral, yet properly 
considered, it is not at all more absurd than the pretended dis- 
covery of power in the second clause for Congress to assume ex- 
clusive jurisdiction over the four million of negroes scattered 
through the nation. If that was the real purpose of the getters- 
up of the amendment, they should have had the honesty and man- 
hood to have used such plain language for the grant of such enor- 
mous and obnoxious power as could not be misunderstood. Hav- 
ing preferred ambiguity to disguise their purpose, the^^ can only 
blame their own maladroit cunning for failing to get any part of 
the power they coveted and hoped to secure under the second clause. 



APPENDIX. 



" Tn the ronquc-sts of ancienttiraes, even inrlividuals lo?t their lands. Butat pres- 
ent, war is less droadful in its conseqiionces to the subjeel ; matter.-s are conducted 
witli more liumfinity ; one sovereign makes war against another sovereign, and not 
Hgainst the unarmed citizens. The conqueror seizes on the possessions of the 
Hiate, the public property, while private individuals are permitted to retain 
theirs " Vat. 388. 

" If it is against the sovereign alone that he (the conqueror) has just cause of 
conij)laint, rcasun {)lainly evinces that he acquires no other rights bj liis conquest 
ihan such as belonged to the sovereign whom he has dis[)ossessed ; and upon the sub- 
mission of the people, he is bound to govern them according to the laws of tho 
State. If the jieople do not voluiitarilv submit, the state of war stiil subsists." 
Vat. oS9. 

" A conqueror who has taken up arms, not only against tVie sovereign, hut 
against the nation herself, and whose intention it was to subdue a fierce savage 
people, may, according to the degree of indc.cility apparent in their disjiosition, gov- 
ern them with a tighter rein, so as to curb and subdu'^ their impetuous spii'it; he may 
even, if necessary, keep them for some time in a kiml of slavery, \liut this forced con- 
dition owjht io ccascfrovi the moment the danger is over — the moment the conquered people 
are become citizens : for then the right of conquest is at an end, so far as it regards L^e 
pursuit of those rigorous measures, since the ccmouerorno longer finds it necessary 
to use extraordinary precautions for his own defence and safety. 

" When a sovereign, arrogating to himself the absolute disposal of a people 
whom he has conquered, attempts to reduce them to slavery, he perpetuates the 
state of warfare between that nation and himself. Should it be said, that in such 
n case there may be ))eaee and a kind of compact by which the conrpieror consents 
to spare the lives of the vanquished, on condition that they acknowledge them- 
selves his slnves ; ho who makes such an assertion is ignorant, that war gives uo 
light to take away the life of an enemy who has laid down his arms arid submitted. 
But let us not rlispute the yjoint: let the man who holds such principles of juris- 
j)rudence, keep them for his own use and benefit : he well deserves to be subject to 
such a law. Batm.cn of spirit to whom life is nothing, less than nothing, unless sweet- 
ened icith liberty, v.'ill always conceive themselves at war with that oppressor, though 
actual hostilities are suspended on their part through want of ability ," Vat. 389.' 

In U. T. vs. Perchman, 7 Peters, the Su])reine Court, per Marshall, C. J., said : 
" It is verv unusual, even in cases of conquest, for the conqueror to do more than 
displace the sovereign and assume domini'uj over the country. Tlie modern usage 
of nations, which has become law, would be violated ; that sense of justice and of 
right, which is acknowledged and felt by the whole civilized world, would be out- 
raged, if private pro[)erty sliould be g'-iieraily confiscated, and private rights an- 
nulled. The jieople change their allegiance ; their relation to their ancient sover- 
eign is dissolved ; hut their relations to eachoiher, and their rights of projierty re- 
main undisturbed." See also, Whcaton on National Law, by Lawrence, 696, to 
[iame effect. 

In the case of the Amy Warwick, in .\dmirnlly. Judge Spraguc of Massachusetts 
Raid : "It has been supposed that if the government have the rights of a bellige- 
rent, then, after tiie rebellion is suppressed, it will have the rights of conquest; 
that a Stati: and its inhabitants may l.'C p;'rmanenl !y lUvested of all political privi- 
leges and treated as foieign territory acquired by arms." This is an error, a 
grave and dangerous error. Beiligerint rights cannot be c.rercised where there are no 
belligerents, t^oncpiest of a foreign coimti-y gives absolute unlimited sovereign 
rights, but no nation ever makes su(di n c(oi(piest of its own territory. If a hostile 
P')wer, either from without or within, take and holds possession and dominion over 
any jiortiou of its territory, and the nation by fori-.e of arms cxjiel or overthrow tb.i 
emunv and su|ipre.ssos luistilities, it acquires no i:ew title, but merely regains the, 
possession of that v\hich it had been temporarily dejirived. The natjiii ac([uires ii-j 
new sovereignty, but merely maintains its previous rights. 

■\Vhcn the U. 8. lake possession of a rebel district, they merely vindicate their 
pre-existing title. Under despotic governments the right of confiscation may be un- 
liniiled ; but under otir government the right of sovereignty over any y)ortion of a 
Blate is given and limited by (he Constitution, and will be the same after the war 
as it was before. 



